Section 61HB Crimes Act 1900
Meaning of “Sexual Touching”

Section 61HB of the Crimes Act 1900 deals with the offence of ‘Meaning of “Sexual Touching”‘ and reads as follows:

61HB Meaning of “Sexual Touching”

(1) For the purposes of this Division,
“sexual touching” means a person touching another person:
(a) with any part of the body or with anything else, or
(b) through anything, including anything worn by the person doing the touching or by the person being touched,
in circumstances where a reasonable person would consider the touching to be sexual.

(2) The matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include:
(a) whether the area of the body touched or doing the touching is the person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed,
(b) whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or
(c) whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.

(3) Touching done for genuine medical or hygienic purposes is not sexual touching.

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

Here are 12 reasons to choose our multi-award winning legal team:

1. Proven Track Record of Exceptional Results

   Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

   Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

   Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.

   We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

   Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

2. Highest Level of Client Satisfaction

   We have the best and most comprehensive client review record of any law firm in Australia.

   Regular communication, accessibility and quality service are our team’s highest priorities.

   We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.

   We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.

3. Australia’s Most Awarded Criminal Law Firm
   

   We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

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8. Accredited Specialists

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   No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.

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10. Team of Lawyers Behind You
    

    Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.

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    A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.

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Our client is a lawyer from the eastern suburbs of Sydney.

He is charged with 11 criminal offences including assault occasioning actual bodily harm, using a carriage service to menace, harass or offence, sexual touching, two counts of intentionally choking a person without consent and three counts of sexual intercourse without consent (sexual assault).

He was refused bail at the police station and engaged our services immediately thereafter, before being brought to court for a bail application the next day.

The case has been highly publicised, with several mainstream media organisations reporting in a manner unfavourable to our client.

It is often the case that in circumstances of this nature, defence lawyers will adjourn cases for days or even weeks – which means their clients remain remanded in custody and have to wait until the necessary work is undertaken.

However, our defence team got to work right away, obtaining detailed information from our client, identifying circumstances relevant to determinations under the Bail Act and making relevant inquiries.

Urgently undertaking such work is crucial to all bail applications, and having a specialist criminal defence team involved is vital in that regard.

Bail applications in cases of this nature require the defence to establish that any risks associated with releasing the defendant can be overcome by appropriate bail conditions.

In court, the presiding magistrate was indeed concerned about the seriousness of the charges and a number of potential risks, but given the preparation undertaken in the abridged period of time and submissions in court addressing those risks was ultimately persuaded to grant bail.

Our client was, as a result, granted bail and released from custody.

Our client is a 30-year old male Uruguayan national residing at Bondi, in Sydney’s Eastern Suburbs.

According to the prosecution’s ‘statement of facts’, the 29-year old female complainant attended a Sunday evening gathering at her friend’s Bondi apartment.

Around 15 other people, including our client, also made their way to the apartment during the course of the evening, where attendees consumed food and alcohol, listened to music, socialised and danced.

At around 1am, a number of the attendees went downstairs to a neighbour’s apartment, where they continued to drink alcohol, listen to music and dance.

Between 2am and 3am, the complainant and our client together with one other female and one male attendee made their way down to the reserve next to the beach. Our client and the complainant walked together. All were intoxicated at the time.

After spending some time there, the complainant agreed to accompany our client back to his apartment. 

The complainant alleged that she then awoke to our client having sexual intercourse with her. She claimed that our client attempted to have penile / anal intercourse with her and, when she resisted, became aggressive and began choking her with his hands, to the point she lost consciousness. 

She claimed to awake to hear him say ‘you’re not going anywhere’.

According to the complainant, after the intercourse had ended, she said she was going to the bathroom before running out of our client’s apartment naked and alerting a passer-by, before police were called.

Police attended our client’s apartment and activated their body worn cameras. They placed our client under arrest.

The body cam footage recorded our client informing the police of the evening’s events and asserting that the sexual intercourse was consensual.

Despite this, police charged our client with five separate criminal offences, being:

1. Sexual intercourse without consent (penile / vaginal), section 61i Crimes Act 1900
2. Intentional strangulation without consent rendering incapable of resistance, section 37(1) Crimes Act 1900
3. Intentional strangulation without consent, section 37(1A) Crimes Act 1900
4. Attempted sexual intercourse without consent (penile / anal), section 61i Crimes Act 1900 by virtue of attempt provisions contained in section 344A(1) of the Act
5. Sexual touching without consent (penile / anal), section 61KC(a) Crimes Act 1900

They refused our client bail at the police station.

Upon being contacted that Monday morning, our senior lawyer attended Waverley Local Court and successfully applied for our client’s release on bail.

The complainant attended hospital where she informed medical staff of her version of the events, including that she had not consented to the sexual intercourse was so heavily intoxicated that there were points she had ‘blacked out’. 

Consent was the central issue in the case, and it is important to bear in mind that the definition of consent contained in section 61HE of the Crimes Act 1900 makes clear that: 

“The grounds on which it may be established that a person does not consent to a sexual activity include…. if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug”.

That being so, our defence team immediately went to work to raise doubt regarding the complaint’s assertions regarding the absence of consent and the level of her intoxication.

That work involved, among other things:

• Identifying and obtaining CCTV footage of the relevant areas by way of both formal requests and – where these weren’t complied with, by subpoena, 
• Obtaining the complainant’s medical records relating to her admission and briefing a pharmacological expert for an expert opinion about whether the blood alcohol concentration would have been sufficient to render her ‘substantially intoxicated’ to the point she had ‘blackouts’ as alleged,
• Obtaining our client’s proof of evidence regarding the events, and
• Obtaining corroborating statements from a number of people who were present on the evening. 

Once the prosecution served its ‘brief of evidence’, it became clear that there were numerous inconsistencies within the complainant’s four statements to police, several unsupported assertions therein as well as claims that were at odds with other evidence.

In addition to this, the defence pharmacological report provided an opinion that the complainant’s level of intoxication would not have rendered her so intoxicated as to have blackouts as she asserted.

By that time, the case had been taken over from the police by the Office of the Director of Public Prosecutions (DPP).

After several weeks of negotiations, including our submission of details ‘representations’ regarding the problems with the prosecution case, the DPP withdrew all charges brought against our client.

He is now free to move forward with his life without the heavy burden of a serious criminal prosecution.

Our client is employed with an information technology company in Sydney.

He was charged with one count of sexually touching a female without her consent.

The accusations arose after a work Christmas party in North Sydney.

According to the police, the complainant and our client attended the party and had several alcoholic drinks.

Later in the night, a group of 13 people from the party proceeded to a bar in the Sydney CBD.

The complainant and two of her friends then invited our client to the complainant’s unit in Chatswood, in Sydney’s northern suburbs.

The complainant told police that after eating food at the apartment, she fell asleep on the couch before awaking to our client lying beside her and stroking her vagina.

She told police the next day that she did not consent to the conduct, and officers swiftly arrested and charged our client with sexual touching against.

The conduct of police was immature given their failure to investigate the credibility of the allegations before pressing charges; indeed, charges were brought before police interviewed those present at the apartment, let alone at the Christmas party.

The investigative work was therefore left to our defence team, who quickly obtained statements that undermined the allegations regarding the lack of consent.

It is unfortunate that despite the enormous resources at the disposal of police, they frequently see fit to press charges against people without undertaking investigative work.

This is partly due to the fact that, unlike police officers in countries such as the United States who must establish ‘probable cause’ before they can charge a person with a criminal offence, officers in our state need only a ‘suspicion on reasonable grounds’ to press charges – which is akin to a ‘shoot first and ask questions later’ state of affairs.

The prosecution withdrew the charge pursuant to defence ‘representations’, which are detailed written submissions identifying inconsistencies, deficiencies and other weaknesses in the police case and formally requesting the discontinuance of proceedings.

Our client is a 38-year old truck driver from the Penrith area.

He has been charged with eight separate sexual offences against a child over a period of time, being:

1. Indecent assault, person under the age of 16 years
2. Sexually touching of child, 10 to 16 years of age
3. Aggravated sexual intercourse with child, 10 to 14 years of age (strictly indictable)
4. Aggravated sexual intercourse with child, 10 to 14 years of age (strictly indictable)
5. Sexual touching of child, 10 to 16 years of age
6. Aggravated sexual intercourse with child, 10 to 14 years of age (strictly indictable)
7. Aggravated sexual intercourse with child, 10 to 14 years of age (strictly indictable)
8. Sexually touching of child, 10 to 16 years of age

A ‘strictly indictable’ offence is one which must be referred to a higher court, such as the District Court, due to its seriousness. It cannot be finalised in the Local Court.

Several of the charges, being counts 3, 4, 6 and 7 are ‘show cause’ offences, meaning that for the purposes of a bail application the onus of proof shifts to the defence which is required to convince the court that there are strong reasons for bail to be granted.  If the defence is unable to do so, the defendant must be remanded in custody, in other words remain in prison, while their case goes through the courts – a process that can take years for a case of this nature.

The prosecution alleges that our indecently assaulted his daughter (indecent assault is the predecessor to the offence of sexual touching) when she was between the ages of 6 and 7 years, and continued to engage in sexual activity with her including sexual intercourse without consent (also known as ‘sexual assault’) for years thereafter.

Our client vehemently denies the allegations, providing us with details regarding the improper motivation for the complaints as well as the events surrounding the alleged offences.

Using that information, our defence team immediately went to work accumulating material to support our client’s instructions, which assisted immensely in overcoming the show cause requirement and securing bail for our client in the Local Court, by undermining the complainant’s version of events as well as raising questions regarding the credibility of the complaint.

Our client is therefore at liberty pending the finalisation of the proceedings.

It is a fundamental tenet of our criminal justice system that a person is presumed innocent until and unless he or she is proven to be guilty in a court of law and, despite the undermining of this important principle through amendments to the Bail Act, including the introduction of ‘show cause’ provisions, it is imperative that criminal defence lawyers fight for the liberty of their clients through thoroughly prepared and persuasively presented bail applications, however serious the allegations may be.

Our client is a 44-year old male doctor who resides in the northern suburbs of Sydney.

An allegation was made that he committed the offence of ‘sexual touching’ (previously known as ‘indecent assault’) against a 14-year old girl, who was a patient.

The basis of the allegation was that, during a consultation, our client inappropriately massaged and hugged the girl while having discussions of a sexual nature.

The girl reported the alleged conduct to her father, who then obtained our client’s telephone number and sent him text messages.

Our client returned the messages, saying he was sorry the girl was upset. He made no admissions to the alleged conduct.

The father then took his daughter to a police station to formally report his daughter’s allegations.

Police then contacted our client, who vehemently denied the allegations, asserting he did not inappropriately touch the girl. As to his text response to the father, he was adamant he was merely expressing that he was sorry a patient would be upset after a consultation.

Despite this, our client was arrested and charged with one count of engaging in sexual touching. He then contacted our office for a consultation.

During the appointment, our client informed us that the girl initiated a conversation regarding a disturbing sexual incident that occurred at her school, and that he was merely trying to console and provide her with support.

The case was later taken over from police by the Office of the Director of Public Prosecutions (DPP).

In court, our client formally entered a plea of not guilty.

‘Representations’ were sent to the DPP regarding our client’s position and requesting the withdrawal of the charges, but prosecutors decided to proceed regardless – without seeking an additional statement from the complainant as to the matters raised - and the case ultimately reached a defended hearing in the Local Court.

Given the complainant’s age and the nature of the allegations, the prosecution was permitted to use her recorded statement as ‘evidence in chief’ and she appeared via audio/visual link rather than inside the courtroom.

Under cross-examination, the girl admitted to the incident at school that she had described to our client as well as the fact she raised the incident during the consultation. As she was taken through her contact with our client, it became clear she fabricated the allegations of the ‘massage’, and she eventually admitted that she had made this up.

The girl also admitted that our client had been her doctor since she was very young. It became clear during her questioning that, in this context, the ‘hug’ was not inappropriate at all, let alone sexual.

The cross-examination made clear there was no prima facie case against our client (in other words, the evidence was not capable of establishing the offence) and the magistrate dismissed the charges.